Rajasthan High Court - Jodhpur
Nirmal Prakash Bissa vs State Of Rajasthan on 30 January, 2023
Author: Rekha Borana
Bench: Rekha Borana
HIGH COURT OF JUDICATURE FOR RAJASTHAN
JODHPUR
S.B. Civil Writ Petition No. 5375/2020
Nirmal Prakash Bissa S/o Govind Prakash Bissa, By caste-
Brahman, Aged About 38 Years, Residence - 38, Gajendra Nagar,
Opposite Victorian Palace, Kheme Ka Kunwan Pal Road, Jodhpur,
Rajasthan.
----Petitioner
Versus
1. State Of Rajasthan, Through The Principal Secretary,
Department Of Public Health And Engineering, Secretariat,
Jaipur.
2. Chief Engineer, Public Health And Engineering
Department, Jaipur.
3. Executive Engineer, Public Health And Engineering
Department, Jodhpur.
----Respondents
For Petitioner(s) : Ms. Archana Purohit
For Respondent(s) : Ms. Anjana Jawa, Dy. G.C.
HON'BLE MS. JUSTICE REKHA BORANA
Order 30/01/2023 The brief facts of the case are that the petitioner was granted compassionate appointment after the death of his father vide order dated 28.02.2014 and was placed under probation for a period of two years.
As per the condition of the petitioner's appointment order dated 28.02.2014, he was to acquire the computer qualification in terms of the notification dated 05.07.2010 within a period of one year of his appointment and further to pass the type test organized by the Department of Language in terms of the notification dated 07.09.2009 within a period of three years. (Downloaded on 30/01/2023 at 11:39:11 PM)
(2 of 7) [CW-5375/2020] The petitioner completed his probation period on 11.03.2016 and was therefore, recommended by the Departmental Authorities for confirmation but vide letter dated 26.08.2016 issued by the Office of the Superintending Engineer, Jaipur, it was communicated that the certificate qua the computer qualification submitted by the petitioner was not in terms of notification dated 05.07.2010 and therefore, it was directed that the required computer qualification certificate be called from the petitioner so that further proceedings for his confirmation may be undertaken.
In pursuance to the said directions, the petitioner appeared in the type test organized by the Department of Language on 25.01.2017 and also in the RSCIT Examination which he cleared on 05.08.2017. After the clearing of the said examination, the petitioner was confirmed and vide order dated 26.03.2018, the probation period of the petitioner was extended till 05.08.2017. Meaning thereby, he was confirmed with effect from 05.08.2017.
The case of the petitioner is that even prior to his appointment, he was possessing the required computer qualification and had also cleared the type test from a recognized institution. Therefore, neither was he required to pass the type test again nor was he required to obtain the computer qualification in terms of the notification dated 05.07.2010.
Learned counsel for the petitioner Ms Archana Purohit submitted that as the petitioner was already possessing the required qualifications, he ought to have been confirmed with effect from the date when he completed his probation period and not w.e.f. 05.08.2017. She submitted that the only requirement in terms of notification dated 05.07.2010 was a Diploma in Computer Science/Computer Application from a university established by law (Downloaded on 30/01/2023 at 11:39:11 PM) (3 of 7) [CW-5375/2020] in India or from an institute recognized by the Government. So far as the petitioner is concerned, he was in possession of a Diploma Certificate in Computer Application from the Rajasthan Consultancy Organization Limited (RAJCON) which is an institute recognized by the State Government. Further, he was also in possession of a Certificate in Computer Language course completed under the Sarva Computer Saksharta Mission, which is an institute certified by the Government of India. Therefore, the petitioner was already qualified in terms of the notification dated 05.07.2010.
Per contra, learned counsel appearing for the respondents submitted that in view of the specific condition of the appointment order, the petitioner was required to obtain the essential computer qualification within a period of one year of the appointment and the type test qualification within a period of three years of the appointment. She submitted that admittedly, the said qualifications as required vide the appointment order, had not been attained by the petitioner within the required period and therefore, he was rightly confirmed with effect from the date when he acquired those essential qualifications.
Heard learned counsel for the parties and perused the material available on record.
It is an admitted fact that the petitioner was granted the compassionate appointment in terms of the Rajasthan Compassionate Appointment Dependants of Deceased Government Servants Rules, 1996 (hereinafter referred to as 'the Rules of 1996'). Rule 9 of the said Rules was amended in the year 2009 and the then existing Rule 9 was substituted by a new Rule which reads as under :
(Downloaded on 30/01/2023 at 11:39:11 PM)
(4 of 7) [CW-5375/2020] "9. Procedural Requirement etc.-The procedural requirement for selection such as training or departmental examination or typing test shall not be insisted upon at the initial appointment. The dependants shall however, be required to clear such training or departmental examination or typing test, within a period of 3 years for entitlement for confirmation failing which his/her appointment shall be liable to be terminated. No annual grade increments will be allowed until he/she acquires such qualifications. On acquiring such qualifications annual grade increments shall be allowed notionally from the date of appointment but no arrears shall be paid:
Provided that the widow appointed under the provisions of these rules shall be exempted from passing the typing test.
Note:- For the purpose of this rule the Director, Bhasha Vibhag shall conduct typing test every year irrespective of the number of candidates."
The essential qualifications in terms of notification dated 05.07.2010 read as under :
"A. Senior Secondary from a recognised Board or its equivalent examination, and B. "O" or Higher Level Certificate course conducted by DOEACC under control of the Department of Electronics, Government of India.
or Computer Operator & Programming Assistant (COPA)/Date Preparation and Computer Software (DPCS) certificate organised under National/State Council of Vocational Training Scheme.
Diploma in Computer Science/Computer Applications from a University established by law in India or from an institution recognised by the Government.
or Diploma in Computer Science & Engineering from a polytechnic institution recognised by the Government.
or Rajasthan State Certificate Course in Information Technology (RSCIT) conducted by Vardhaman Mahaveer Open University, Kota under control of Rajasthan Knowledge Corporation Limited." (Downloaded on 30/01/2023 at 11:39:11 PM)
(5 of 7) [CW-5375/2020] The appointment order dated 28.02.2014 of the petitioner specifically provided for the following conditions :
^^mDr vH;kFkhZ dh 'kS{kf.kd ;ksX;rk ,e0 dkWe0 ijh{kk]2003 mRrh.kZ gksus ds dkj.k dkfeZd¼d&2½ foHkkx dh vf/klwpuk fnukad 05- 07-2010 ds ifjizs{; esa mUgsa fu/kkZfjr dEI;wVj ;ksX;rk izkIr djus ds fy;s dkfeZd¼d&2½ foHkkx ds ifji= fnukad 21-09-2010 ds vuqlkj ,d o"kZ esa mRrh.kZ djus dh NwV nh tkdj funsZf'kr fd;k tkrk gSa fd mUgsa fu/kkZfjr dkslZ mRrh.kZ dj mldh izekf.kr izfr fu;a=.k vf/kdkjh ds ek/;e ls bl dk;kZy; dks izLrqr djuh gksxh ,oa jkT; ljdkj }kjk le;≤ ij fofufnZ"V vuqlkj foHkkXkh; ijh{kk Hkh mRrh.kZ djuh gksxh A ,slk ugha djus ij budh fu;qfDr lekIr dh tk ldsxhA mDr vH;kFkhZ dks dkfeZd¼d&2½foHkkx dh vf/klwpuk fnukad 07-09-2009 ds vuqlkj fu;qfDr fnukad ls rhu o"kZ dh vof/k esa Hkk"kk foHkkx ls dEI;wVj Vad.k ijh{kk mRrh.kZ djuk Hkh vfuok;Z gksxk ftlds fy;s fu/kkZfjr izk:i esa vkosnu i= Hkk"kk foHkkx dks dk;kZy;k/;{k ds ek/;e ls izsf"kr fd;k tkosxkA ifjoh{kk vof/k esa vH;kFkhZ dks okf"kZd osruo`f) ns; ugha gksxhA** A cumulative reading of the provisions as mentioned above and the conditions of the appointment order makes it clear that the petitioner was firstly required to obtain the computer qualification in terms of notification dated 05.07.2010 within a period of one year and secondly to clear the type test organised by the Language Department within a period of three years. A perusal of the documents Annexures-3 & 4 placed on record, alleged to be the certificates of the required computer qualification as well as the type test, shows that the Diploma Certificate obtained by the petitioner in the year 2012 is from an ISO certified institute recognised by the Government of India. The specific pleading regarding the said certificate to be from an institute recognised by the Government has been made in the petition and there has been no denial of that averment/statement (Downloaded on 30/01/2023 at 11:39:11 PM) (6 of 7) [CW-5375/2020] by the respondents in their reply. Meaning thereby, the said certificate has not been denied to be issued by an institute recognised by the Government. Therefore, it is clear that the petitioner was in possession of the required computer qualification even prior to his appointment and was therefore, not required to obtain the same again, in terms of his appointment order. The denial of confirmation of the petitioner on the said ground cannot therefore be held to be tenable.
But then, it was also the specific condition of the appointment that the petitioner had to clear the type test organised by the Language Department of the State within a period of three years. Annexure-4 as placed on record cannot be termed to be a certificate qua the type test in terms of Rule 9 of the Rules of 1996. Admittedly, the petitioner appeared in the type test on 22.01.2017 and was declared successful on 25.01.2017. Therefore, in terms of the specific condition of the appointment as well as Rule 9 of the Rules of 1996, he could not have been confirmed prior to 25.01.2017. What can be summed up from a cumulative reading of the appointment order dated 28.02.2014 and Rule 9 of the Rules of 1996 is that an employee appointed under the Rules of 1996 is required to clear the type test within a period of three years of appointment. He would not be entitled to be confirmed till he passes the said examination. Further, he would be liable to be terminated also if he fails to pass the said examination. But the only detriment of not clearing the said examination within a period of three years is that he would not be entitled to annual grade increments. The notional annual grade increments would be payable to him after acquiring the said (Downloaded on 30/01/2023 at 11:39:11 PM) (7 of 7) [CW-5375/2020] qualification w.e.f. the date of appointment and no arrears would be payable. Meaning thereby, he would be confirmed with effect from the date of his completion of probation period but would not be entitled to the annual grade increments till he clears the type test.
Therefore, the impugned order dated 26.03.2018 whereby the period of probation of the petitioner was extended till 05.08.2017 cannot be held to be valid and the same is therefore, quashed and set aside. The petitioner is directed to be confirmed with effect from the date he completed his probation period i.e. 11.03.2016. However, he shall be entitled to the notional annual grade increments with effect from his date of appointment and the actual grade increments would be payable to him only with effect from the date he cleared his type test i.e. 25.01.2017. The consequential orders be passed within a period of 2 months of the receipt of the present order.
With the above observations, the present writ petition is disposed of.
The stay application and the pending applications also stand disposed of.
(REKHA BORANA),J AnilKC/vij/-
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